UNIDROIT Principles Research Articles

Contract Law Reform in Japan and the UNIDROIT Principles

Journal Article Contract Law Reform in Japan and the UNIDROIT Principles Get access Takashi Uchida Takashi Uchida Search for other works by this author on: Oxford Academic Google Scholar Uniform Law Review, Volume 16, Issue 3, August 2011, Pages 705–717, https://doi.org/10.1093/ulr/16.3.705 Published: 01 August 2011

The New Provisions on Conditions in the UNIDROIT Principles 2010

The subject of “conditions” was one of the topics retained by the Governing Council of UNIDROIT for possible inclusion in an enlarged third edition of the UNIDROIT Principles of International Contracts (hereinafter: “UNIDROIT Principles” or “Principles”).1 At its meeting in Rome from 29 May to 1 June 2006, the Working Group preparing the third edition decided to deal with this topic.2 The matter is now the subject of the new Section 3 of Chapter 5 of the UNIDROIT Principles 2010. The solutions provided by significant earlier codifications were considered by the Working Group. Special attention was given to international or European codifications, particularly to the Principles of European Contract Law (hereinafter: PECL) (Chapter 16) and, later, to the Draft Common Frame of Reference (hereinafter: DCFR) published in 2008 (Article III.-1:106), as well as to various national laws on contracts and to the provisions on conditions of the Preliminary OHADA draft Uniform Act on the law of contracts (prepared by Professor Marcel Fontaine). The discussions of the Working Group are summarised in the Summary Records which are available on the UNIDROIT website.3 In commercial practice, disputes often arise relating to conditions. The terminology fluctuates and this affects the clarity of the rules. Some members of the Group expressed doubts as to the usefulness of provisions on conditions, arguing that the provisions on contract interpretation contained in the Principles were sufficient. However, the majority was of the opinion that conditions were

The Impact of the UNIDROIT Principles in International Dispute Resolution in Figures

The Impact of the UNIDROIT Principles in International Dispute Resolution in Figures

An Empirical Study of the UNIDROIT Principles - International and British Responses

Journal Article An Empirical Study of the UNIDROIT Principles – International and British Responses Get access Sarah Lake Sarah Lake Search for other works by this author on: Oxford Academic Google Scholar Uniform Law Review, Volume 16, Issue 3, August 2011, Pages 669–703, https://doi.org/10.1093/ulr/16.3.669 Published: 01 August 2011

The Impact of the UNIDROIT Principles on International Contract and Arbitration Practice - the Experience of a German Lawyer

The Impact of the UNIDROIT Principles on International Contract and Arbitration Practice - the Experience of a German Lawyer

The Unwinding of Failed Contracts in the UNIDROIT Principles 2010

The Unwinding of Failed Contracts in the UNIDROIT Principles 2010 Get access Reinhard Zimmermann Reinhard Zimmermann Search for other works by this author on: Oxford Academic Google Scholar Uniform Law Review, Volume 16, Issue 3, August 2011, Pages 563–587, https://doi.org/10.1093/ulr/16.3.563 Published: 01 August 2011

The New Provisions on Illegality in the UNIDROIT Principles 2010

The New Provisions on Illegality in the UNIDROIT Principles 2010

The New Provisions on Plurality of Obligors and of Obligees in the UNIDROIT Principles 2010

Journal Article The New Provisions on Plurality of Obligors and of Obligees in the UNIDROIT Principles 2010 Get access Marcel Fontaine Marcel Fontaine Search for other works by this author on: Oxford Academic Google Scholar Uniform Law Review, Volume 16, Issue 3, August 2011, Pages 549–562, https://doi.org/10.1093/ulr/16.3.549 Published: 01 August 2011

Prospects for the UNIDROIT Principles in Brazil

Prospects for the UNIDROIT Principles in Brazil Get access Lauro Gama, Jr. Lauro Gama, Jr. Search for other works by this author on: Oxford Academic Google Scholar Uniform Law Review, Volume 16, Issue 3, August 2011, Pages 613–656, https://doi.org/10.1093/ulr/16.3.613 Published: 01 August 2011

The Analyzing on Application Cases of UNIDROIT Principles in International Commercial Arbitration

The Analyzing on Application Cases of UNIDROIT Principles in International Commercial Arbitration

Evolving General Principles of International Commercial Contracts: The Unidroit Principles and Favor Contractus

It has been suggested that favor contractus constitutes a basic idea or general principle underlying the Unidroit Principles of International Commercial Contracts (UPICC). This principle aims to preserve the contractual relation by limiting the number of situations in which the existence or validity of the contract is questioned or in which it may be terminated. The focus of this paper is on the interplay between favor contractus and the traditional principles of freedom of contract and pacta sunt servanda. This is done by focusing on two particular problems in international contract practice: the battle of forms and unforeseen changed circumstances (hardship). Addressing these problems is particularly interesting because the UPICC introduce innovative provisions to deal with these situations. Within these innovative provisions, it is possible to detect the underlying idea of favor contractus, in particular the policies to favour the existence of a binding agreement in the context of the battle of forms and to preserve the contractual relation in case of hardship. At the same time, the rules dealing with the battle of forms seem to stretch the traditional rules on contract formation and challenge to a certain degree, the principle of freedom of contract. Likewise, the provisions dealing with hardship tend to clash with the principle of pacta sunt servanda. It is consequently interesting to see how these innovative rules dealing with particular problems relevant to international trade practice lead to the adaptation – or the evolution – of traditional principles of contract law or even the emergence of a new principle.

The Duty to Renegotiate an International Sales Contract under CISG in Case of Hardship and the Use of the Unidroit Principles

The duty to Renegotiate an international Sales Contract under CISG in Case of Hardship and the Use of Unidroit Principels

The Illegality of a Contract Contrary to Fundamental Principles of International Law

This draft examines the recent developments in the work on the new chapter of UNIDROIT Principles on Illegality. The paper based on this draft then will foucs on the genuine link between international commercial law (i.e. basically private law) and public international law via contracts contrary to fundamental principles of international law.

The Role of Principle of Good Faith in Termination of Long Term Contracts

This project will examine the role of principle of good faith as laid down by art. 1.7 of the UNIDROIT Principles of International Commercial Contracts in the termination of long term contracts for just cause as proposed by the UNIDROIT draft.

Commentary on the UNIDROIT Principles of International Commercial Contracts (PICC)

Commentary on the UNIDROIT Principles of International Commercial Contracts (PICC)

UNIDROIT Principles and CISG : Change of Circumstances and Duty to Renegotiate according to the Belgian Supreme Court

I. – INTRODUCTION Among the different ways in which the UNIDROIT Principles of International Commercial Contracts 2004 (hereinafter: UNIDROIT Principles or PICC) could be applied according to their Preamble, one of the most interesting and yet still controversial cases concerns their possible use to “interpret or supplement international uniform law instruments”.1 Not surprisingly, the overwhelming majority of contributions by legal scholars and practical applications by adjudicators deals with the relationship between the UNIDROIT Principles and the 1980 United Nations Convention on the International Sale of Goods (hereinafter: CISG).2 This question has been recently addressed by the Belgian Supreme Court in a decision which may well be considered as a particularly relevant recognition of the UNIDROIT Principles, all the more so since it comes from the highest instance within a domestic jurisdiction and not – as is certainly more usual – from an arbitral tribunal.3

Common Frame of Reference and UNIDROIT Principles of International Commercial Contracts: Coexistence, Competition, or Overkill of Soft Law?

This paper compares the scope, the purpose, the legal effect and the content of the emerging Common Frame of Reference on the one hand and the UNIDROIT Principles of International Commercial Contracts on the other. It predicts that the two instruments will largely coexist side by side, rather than compete for potential users. The author further argues that, in the area of commercial law, there is no strong need for a non-binding, or ‘soft’ Common Frame of Reference because the UNIDROIT Principles are sufficiently capable of performing the functions that such a Frame of Reference can legitimately claim to fulfil: the Common Frame of Reference may be just one soft law instrument too many. Résumé Cet article compare la portée, le but, l'effet juridique et le contenu du Cadre Commun de Référence naissant d'une part, et les principes d'Unidroit relatifs aux contrats du commerce international d'autre part. Il prédit que les deux instruments coexisteront largement côte à côte, plutôt que de se faire concurrence vis-à-vis d'utilisateurs potentiels. L'auteur soutient en outre que, dans le domaine du droit commercial, il n'y a pas un fort besoin d'un Cadre Commun de Référence non obligatoire et ”mou”, car les principes d'Unidroit sont suffisants pour remplir les fonctions qu'un tel Cadre de Référence peut légitimement revendiquer : le Cadre Commun de Référence est alors peut-être juste un instrument de ”droit mou” de trop. Kurzfassung Der Beitrag vergleicht die Anwendungsbereiche, die Funktionen, die Rechtswirkungen und die Inhalte des in Entstehung begriffenen Gemeinsamen Referenzrahmens mit denen der UNIDROIT Grundregeln der Internationalen Handelsverträge. Der Verfasser erwartet, dass die beiden Regelwerke mehr oder weniger nebeneinander existieren und kaum in einen Wettbewerb um potentielle Nutzer treten werden. Er vertritt ferner die Auffassung, im Bereich des Rechts der Handelsverträge bestehe kein ausgeprägter Bedarf an einem nicht-bindenden, „weichen“ Referenzrahmen, da die UNIDROIT Grundregeln diejenigen Funktionen, deren Erfüllung ein derartiger Referenzrahmen für sich in Anspruch nehmen kann, hinreichend ausüben können: ein „weicher“ Gemeinsamer Referenzrahmen ist hier schlichtweg überflüssig.

Contract Enforceability During Economic Crisis: Legal Principles and Drafting Solutions

The recent economic crisis, now commonly called the Great Recession, has caused huge financial dislocations. One aspect of the crisis is the effect on contractual obligations: Can a contractual obligation be avoided because of fundamental disruptions in the relevant market? This paper first looks at the common law; there, major market changes are rarely, if ever, the basis of avoidance of a contractual obligation. Restatement and UCC provisions also reflect this “principle of market risk.” While case law dealing with the effect of the economic crisis on contracts is thin, the few reported decisions are quite uniform in applying the market risk principle to deny relief.The second part of the paper considers the extent to which international contract law as reflected in the Principles of International Commercial Contracts (the UNIDROIT Principles) and the Convention on the International Sale of Goods (CISG) provides relief from fundamental market disruptions. Article 6.2.1 of the UNIDROIT Principles recognizes that when supervening circumstances lead to a fundamental change in the equilibrium of the contract, relief on the ground of hardship may be available. A few cases have granted relief under this provision, but they are rare. In addition, arbitration panels are divided on the question of whether hardship is part of the general commercial law, the lex mercatoria.Article 79 of the CISG provides for relief due to an “impediment” beyond the control of a party that the party could not reasonably have been expected to take into account. Controversy exists as to whether the concept of impediment encompasses economic hardship due to market change. The paper examines the contending arguments and case law on this issue.Because both common and international law rarely provide relief from market change, a party who wishes to have protection against market disruptions should provide for this contingency by contract. The final section of the paper, with no intent of being complete, suggests various types of clauses for the parties to consider incorporating into their contracts to deal with market change: whereas clauses; express conditions; MAC (market adverse condition) clauses; expanded force majeure clauses; hardship clauses; renegotiation and adjustment clauses; choice of law, forum, and arbitration clauses; Take-or-Pay and Hell-or-High-Water clauses. The fundamental message of the paper is that the parties should address relief from market changes in the negotiation of the contract. If they choose not to do so, they cannot expect to obtain relief from courts or arbitrators.

Application of the UNIDROIT Principles in China : Successes, Shortcomings and Implications

Journal Article Application of the UNIDROIT Principles in China : Successes, Shortcomings and Implications Get access Chi Manjiao Chi Manjiao Search for other works by this author on: Oxford Academic Google Scholar Uniform Law Review, Volume 15, Issue 1, January 2010, Pages 5–36, https://doi.org/10.1093/ulr/15.1.5 Published: 01 January 2010

Unauthorized Agency

This paper seeks to provide an overview of the project which led to publication of the book The Unauthorised Agent: Perspectives from European and Comparative Law, published by Cambridge University Press in 2009. Broadly speaking, the project concerned the problems caused by agents who act in an unauthorized manner and the legal concepts used to tackle those problems. These issues are analysed in the context of different national legal systems within the European Union and beyond. Drawing on the national chapters, the authors provide a detailed comparative analysis. Within this context, they assess whether a common law/civil law divide exists, and also analyse the contribution made by mixed legal systems. Finally, the book assesses the approach of international instruments such as the Principles of European Contract Law (PECL) and the Unidroit Principles of International Commercial Contracts.